The United States of America, Eric Holder, James B. Comey and Kamala Harris[1] move to dismiss Plaintiff Chris A. Wortman's complaint under Fed.R.Civ.P. 12(b)(6). Because the court finds that Wortman's claims fail as a matter of law, Defendants' motions are GRANTED but with leave to amend.

I.

Wortman pleaded guilty to felony domestic violence in May 2003.[2] Four years later, he petitioned to downgrade his felony conviction to a misdemeanor, which the Superior Court of California promptly granted.[3] When Wortman tried to purchase a firearm six years later, he was advised by the State of California that, while under California law his right to possess firearms had been restored after ten years from the date of his felony conviction, his application was rejected by the United States Department of Justice by virtue of 18 U.S.C. § 922(g)(9), [4] which prohibits an individual convicted of misdemeanor domestic violence from ever possessing a firearm.[5] After exhausting all other administrative remedies, Wortman brought this suit. He specifically seeks declaratory relief as to the meaning of 28 U.S.C. §§ 921(a)(33), 922(d)(9) and 922(g)(9) and pursuant to 42 U.S.C. § 1983 alleges violations of his rights under the First, Second, Fifth and Tenth Amendments to the United States Constitution.

II.

This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).

At this stage of the case, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party.[6] The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice.[7] However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences.[8]

III.

"[D]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."[9] If a plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face, " the complaint may be dismissed for failure to state a claim upon which relief may be granted.[10] A claim is facially plausible "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[11] Against these standards, none of Wortman's claims pass muster.

First, Wortman's first and second claims for declaratory relief fail as a matter of law.[12] Section 922(g) prohibits individuals who have been convicted of a felony from possessing a firearm.[13] Subsection (9) extends this prohibition to individuals who have been convicted of a misdemeanor crime of domestic violence.[14] Congress purposefully extended the prohibition to domestic violence misdemeanants out of concern that such offenders are rarely convicted of felonies but nevertheless pose a substantial threat if they have access to firearms. "By extending the federal firearm prohibition to persons convicted of misdemeanor crime[s] of domestic violence, ' proponents of § 922(g)(9) sought to close this dangerous loophole.'"[15] Congress also created exceptions to the prohibition: "A person shall not be considered to have been convicted of such an offense for purposes of [Section 922(g)(9)], " "if the conviction has been expunged or set aside, " or is for "an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."[16]

Wortman argues that he qualifies for this latter exception because he had his civil rights restored when his felony conviction for domestic violence was reduced to a misdemeanor. When Wortman pleaded guilty to felony domestic violence, he lost - by operation of California law - all or some of his core civil rights.[17] After Wortman successfully filed his petition, the state-law restrictions on his civil rights no longer applied, [18] which Wortman argues is synonymous with them having been restored.

The case law, however, does not support such an interpretation. In United States v. Brailey, the defendant originally pleaded guilty in Utah to felony domestic violence.[19] The court later granted his petition to reduce his felony conviction to a misdemeanor.[20] Utah law originally barred the defendant from possessing a firearm because of his misdemeanor conviction. When the Utah legislature changed the law to permit misdemeanants to possess firearms, the defendant was still barred from doing so as a result of his status under Section 922(g)(9).[21] The district court considered whether the misdemeanor conviction had been expunged or whether any civil rights had been restored based on the misdemeanor conviction.[22] In affirming the district court, the Ninth Circuit held that "when Brailey's conviction was changed from a felony to a misdemeanor crime of domestic violence in 1997, he did not lose any core civil rights.... Thus, Brailey's civil rights could not have been restored in 2000 within the meaning of the federal exception because his misdemeanor conviction had not resulted in the loss of his civil rights as expressly required to qualify for the federal exception."[23] Ultimately, "a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception... [because] [w]hen a defendant's civil rights were never taken away, it is impossible for those civil rights to have been restored."[24]

Wortman's position also is illogical. Wortman would have this court rule that an individual who was initially convicted of misdemeanor domestic violence - by definition a lesser crime than felony domestic violence - should never be able to possess a firearm, but an individual who was initially convicted of a greater crime and who later convinced the government to downgrade the conviction should be able to possess a firearm. That simply does not compute.

Wortman also argues that his rights have been restored under California law because Cal. Pen. Code § 29805 prohibits individuals with certain misdemeanor convictions - including Wortman's conviction - from possessing a firearm for the first ten years following conviction. Thus, as of 2013, Wortman can legally possess a firearm under California law - which Wortman contends counts as a civil rights restoration for the purposes of Section 922(g)(9). Brailey, however, explicitly holds that "while the restoration of civil rights enjoyed under state law by persons convicted of crimes is governed by state law, federal law governs whether a person's possession of a firearm violates a federal statute."[25] And in Caron v. United States, the Supreme Court held that a "defendant could be convicted of possession of a firearm, in his case a rifle, under federal law, even though his possession of the rifle was permitted under state law. Caron's holding, therefore is that federal law, not state law, controls the right of a defendant to bear a firearm under a federal statute."[26]

Second, Wortman's claim that Defendants' interpretation and application of Section 922(g)(9) violates the Second Amendment fails as a matter of law. The Ninth Circuit has held time and time again that Section 922(g)(9) does not violate the Second Amendment.[27] While Wortman relies on District of Columbia v. Heller for the proposition that the Second Amendment allows "law-abiding, responsible citizens to use arms in defense of hearth and home, "[28] even after Heller the Ninth Circuit has held that "Section 922(g)(9) [simply] does not implicate this core Second Amendment right because it regulates firearm possession for individuals with criminal convictions."[29]

Third, Wortman claims that Defendants' interpretation of Section 922(g)(9) as applied to him violates the First Amendment because it imposes "a lifetime ban on the exercise of a fundamental constitutional right for a minor crime without providing a statutory remedy for restoration of that right."[30] That claim also is unfounded. Wortman has not alleged that the government has restricted his right to speech or to petition the government for redress. Indeed, Wortman could seek repeal of Section 922(g)(9) or amendment in some other way that would restore his gun rights. Because gun possession itself is not speech, there is no colorable claim under the First Amendment.[31]

Fourth, Wortman claims that Defendants' interpretation of Section 922(g)(9) violates the Tenth Amendment because it "usurps the power retained by the State of California" to define procedures for the restoration of gun rights following a conviction for a reduced felony crime of domestic violence.[32] But Wortman fails to substantiate this claim in any way, particularly in light of the clear case law holding "[t]he Lautenberg Amendment does not violate the Tenth Amendment. As a federal firearms law, the Lautenberg Amendment is a valid exercise of Congress's commerce power."[33]

Fifth, Wortman claims that Defendants' interpretation of Section 922(g)(9) violates the Fifth Amendment because "it imposes a lifetime ban on the exercise of a fundamental constitutional right for a minor reduced crime by stating that the applicable statutory remedy for restoration of that right does not apply, even when it has already been granted under the laws of the applicable jurisdiction."[34] But again, while Wortman offers no authority in support of his position, the Ninth Circuit has already rejected equal protection challenges to Section 922(g)(9).[35] In United States v. Hancock, the court explained that Congress "was aware of the discrepancies in state procedures for revoking and restoring civil rights" when it enacted Section 922(g)(9), and thus "disparate treatment of some offenders was the inevitable result of Congress'[s] decision to look at state law to define the restoration exception.'"[36] Putting Congress's intentions aside, the statutory framework provides for "several adequate legal mechanisms" that both convicted felons and misdemeanants equally can pursue - namely "pardon, expungement, and setting aside of convictions."[37] Because felons and misdemeanants are similarly situated in their ability to pursue restoration of rights that might bear on their ability to process arms, there is no legal basis to Wortman's Fifth Amendment claim.

IV.

Defendants' motion to dismiss are GRANTED. Dismissal without leave to amend is only appropriate if it is clear that the complaint could not be saved by amendment such as after a plaintiff's "repeated failure to cure deficiencies by amendments previously allowed."[38] Because Wortman has not previously amended his complaint and the court cannot yet say that amendment would be futile, leave to amend also is GRANTED. Any amended pleadings shall be filed within 21 days.

SO ORDERED.

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